On January 10, 2007, U.S. Magistrate Judge Janice M. Stewart granted a habeas corpus petition filed by a federal prisoner who alleged that the Bureau of Prisons (BOP) miscalculated his good conduct time (GCT).

George Scott Kelly was convicted of felony possession of a firearm in 2003. At the time of Kelly’s sentencing, Kelly had been incarcerated in a California state prison for 28 months on related charges. However, because this time had already been credited against Kelly’s state sentence, the BOP was unable to apply the 28 months toward Kelly’s federal sentence.

To remedy this problem, Kelly’s sentencing judge imposed a sentence of 70 months but reduced the sentence pursuant to United States Sentencing Guideline section 5G1.3 to 42 months to reflect the 28 months BOP would not credit to Kelly’s federal sentence.

Upon commitment to the Federal Correctional Institution in Sheridan, Oregon, BOP calculated Kelly’s GCT based on a 42 month sentence as opposed to a 70 month sentence. Kelly filed a habeas corpus petition challenging the calculation. The court granted the petition, finding that “it is clear that the sentencing judge intended to impose a 70-month term of imprisonment.” Accordingly, the court ordered the BOP to recalculate ...

A U.S. district court in New York allowed the New York City Police Department (NYCPD) to settle a civil case in 1977 by stipulating and clarifying the NYCPD’s policy on bystanders remaining in the area of an arrest in progress.

Lawyers for both parties agreed that the NYCPD would not admit any violation by any of its employees. According to the order, onlookers shall not be arrested without probable cause. Unless done in a threatening matter, the following are specifically excluded from being deemed probable cause: remaining in the vicinity, speech alone, taking pictures and making note of officers’ names or shield numbers.

If a bystander is taken into custody the arresting officer is required to report it to his supervisor. Upon the issuance of this order, all NYCPD employees were to be made aware of such an order. See: Black v. Codd, USDC, S.D.N.Y., No. 73-Civ-5283.

The Eighth Circuit Court of Appeals has held that 18 U.S.C. sec. 4211(c)(1) creates only a right to an early parole termination hearing, not a right to release in the absence of a timely hearing.

The Court’s ruling came in the appeal of federal parolee Arnold Mitchell, who appealed a Missouri federal district court’s dismissal of a 28 U.S.C. sec. 2241 petition challenging his revocation of probation. Mitchell was convicted in 1988 of federal drug offenses and sentenced to three concurrent 240 month terms of imprisonment and 3 years of supervised release. After serving 102 months, Mitchell was released to parole on March 27, 1997. His parole was scheduled to expire sometime in 2008.

In February 2004, Mitchell was indicted for mail fraud that occurred in 1998. The United States Parole Commission violated Mitchell, rejecting his argument that the revocation was improper because he had not received a 5-year early termination hearing in 2002 under sec. 4211(c)(1).

The Court found that when the House sponsor of the Parole Act spoke, he remarked that “[i]f the Commission fails to act in accordance with these deadlines, the prisoner or parolee would not automatically be released from confinement, but he would compel the ...

On November 30, 2005, John McHenry of Delaware County, Pennsylvania was awarded $1,000 in compensatory damages and an additional $15,000 in punitive damages as a result of his civil rights suit for false arrest.

On June 16, 2002, Father's Day, McHenry was arrested in front of his children in his ...

The United States Court of Appeals for the Federal Circuit affirmed a lower court’s dismissal of a false imprisonment claim against the United States. Because the action was not brought within the six year limitation period, the court lacked subject matter jurisdiction.

Jabari Zakiya was convicted of tax evasion and failing to file income tax returns. In 1994, he was sentenced to 16 months in prison, a 36-month supervised release term and a $25,000 fine.

With good time credit, Zakiya’s release date was February 29, 1996, and his maximum sentence expiration date was in May 1996. Prison officials refused to release Zakiya, however, when he refused to sign an agreement to pay the fine as a condition of supervised release, pursuant to 18 USC sec. 3624(e). Eventually a federal court granted Zakiya’s petition for a writ of habeas corpus and ordered his immediate release. See Zakiya v. Reno, 52 F. Supp. 2d 629(E.D. Va. 1999). He was finally released on May 5, 1999.

On May 24, 2007, Zakiya filed suit seeking money damages for false imprisonment between February 29, 1996 and May 5, 1999. The district court dismissed the action for lack of subject-matter jurisdiction.

The appellate court affirmed, concluding ...

The California Court of Appeal, in 2-1 decision, overruled Governor Schwarzenegger’s fourth reversal of a grant of parole for a 60-year-old female first-degree murderer after finding that her release was not supported by “some evidence” rationally indicating that she presently (35 years after the offense) represents an unreasonable risk to public safety if released on parole.

In 1971, Sandra Lawrence killed the wife of her lover, having shot her six times and then stabbed her four times with a potato peeler. She fled for 11 years, but then turned herself in. After refusing a two-year “deal,” she suffered a first- degree murder conviction at trial and was sentenced to 7 years to life. In 1993 she was granted what turned out to be the first of four grants of parole by the Board of Parole Hearings (Board), each of which was overturned based on some evidence by the Governor then in office, even though no one, “not even a representative of a ‘victims’ rights’ organization,” opposed her release.

The court reviewed relevant recent state and federal case law to determine the meaning of “some evidence” in each forum. Both federal and state courts agreed that California life prisoners have a ...

The City of Salinas, California paid a Daly City man $90,000 to settle his lawsuit for unlawful arrest, detention and excessive force.

Maurice Goodman, an African American staff paralegal for the San Mateo County Superior Court, and coach and team president of the Daly City youth football team took his ...

Ex federal prisoner and Washington, D.C., resident Isaac McKelvin filed an administrative tort claim with the United States Department of Justice (DOJ), Federal Bureau of Prisons (BOP), for being incarcerated 11 days past his mandatory release date. He was paid $1,375 to settle the claim.

McKelvin was incarcerated at the ...

By David C. Fathi

DNA testing is a uniquely powerful crime-solving tool. Testing crime scene evidence using new and advanced techniques has solved many previously unsolved crimes, leading to the arrest and conviction of rapists and other violent criminals. Just as important, DNA testing has exonerated at least 232 innocent persons who had been wrongly convicted, including 17 who had been sentenced to death for crimes they didn't commit.

For these reasons, John Ashcroft, Attorney General in the George W. Bush administration, has called DNA testing "the truth machine of law enforcement, ensuring justice by identifying the guilty and exonerating the innocent." But on Monday, a lawyer for the Obama administration will argue in the Supreme Court that a prisoner who claims he is innocent has no constitutional right to have DNA from the crime scene tested -- even if he is willing to pay the costs himself.

In fairness, the Obama Justice Department inherited this case from the Bush administration, which filed a brief supporting the prosecution less than three weeks before leaving office. But lawyers for the prisoner, William G. Osborne, asked the new administration to change its position in the case, as it is entitled to do, ...

Sixth Circuit Outlines Exceptions to Heck Favorable-Termination Doctrine

The Sixth Circuit Court of Appeals has held the favorable-termination doctrine does not apply to 42 U.S.C. § 1983 actions brought by prisoners who were foreclosed from challenging their incarceration in a habeas action or who are only challenging the procedures that led to the incarceration and not the underlying conviction or duration of sentence.

The Court’s ruling comes in an appeal brought by Ohio’s Hamilton County Public Defenders (HCPD) office, which was sued by Michael Powers. An Ohio federal district court granted Powers’ motion for summary judgment in his class action lawsuit that contended the HCPD had a custom or policy of failing to seek indigency hearings on behalf of criminal defendants facing jail time for unpaid fines.

Powers was ordered to pay a $250 fine in lieu of a 30-day suspended jail sentence for a misdemeanor traffic offense. Two months later he was arrested for failing to pay the fine. After he pled guilty to the violation the jail sentence was imposed, causing him to spend at least one day in jail.

The HCPD argued that Powers’ § 1983 complaint was barred by Heck v. Humphrey, 512 U.S. 477 (1994), ...